Molesworth v. Secretary of Com.

• Decision Date: 14 February 1964
• Citation: 196 N.E.2d 312,347 Mass. 47
• Parties: Jack E. MOLESWORTH et al. v. SECRETARY OF the COMMONWEALTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 312

196 N.E.2d 312

347 Mass. 47

Jack E. MOLESWORTH et al. v. SECRETARY OF the COMMONWEALTH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 8, 1963.

Decided Feb. 14, 1964.

Irving Goodman, Boston, for petitioners.

Nelson I. Crowther Jr., Asst. Atty. Gen., for respondents.

Before SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

CUTTER, Justice.

This is a petition for a writ of mandamus to compel the Secretary of the Commonwealth to provide blanks for subsequent signers on a petition for a referendum upon, and suspension of, St.1963, c. 506. That statute provided for an increase in salary and expense allowances for members of the General Court. The petitioners also have asked that the Treasurer and Receiver General be restrained from making any payments under the act. The single justice ordered that the blanks be issued without prejudice, denied the prayer for a restraining order, and reserved and reported the case for the consideration of the full court. The question presented is whether the act is an 'emergency' measure.

In 1948, the Massachusetts Constitution was amended to provide in art. 48 of the Amendments, The Referendum, I, 'No law passed by the general court shall take effect earlier than ninety days after it has become a law, excepting laws declared to be emergency laws and laws which may not be made the subject of a referendum petition, as herein provided.' Then follows II (as amended by art. 67), 'A law declared to be an emergency law shall contain a preamble setting forth the facts constituting the emergency, and shall contain the statement that such law is necessary for the immediate preservation of the public peace, health, safety or convenience. A separate vote, which shall be recorded, shall be taken on the preamble, and unless the preamble is adopted by two-thirds of the members of each House voting thereon, the law shall not be an emergency law. Upon the request of two members of the Senate or of five members of the House of Representatives, the vote on the preamble in such branch shall be taken by call of the yeas and nays. * * *' (emphasis supplied). Next follows a provision, not now relevant, for a statement by the Governor in declaring an act an emergency measure. The amendment also provides, in III, §§ 3 and 4, for a referendum both on emergency laws and other laws not within the excluded matters. It permits the suspension of the statute pending the outcome of the referendum only if it is not an emergency law. Thus, the petitioners are entitled to blanks calling for the suspension of St.1963, c. 506, if the statute is not an 'emergency law.'

Statute 1963, c. 506, provides for increased allowances (§§ 5 and 6) ¹ and for increased salaries (§ 4) for 1963. It also provides for increased annual compensation (§§ 1 and 3) and increased expense allowances (§ 2) beginning January 1, 1964.

The preamble to St.1963, c. 506, refers only to the increased allowances (and not to the salary increases). It reads, 'Whereas, The deferred operation of this act would tend to defeat its purpose, which is in part to provide forthwith for the payment of increased allowances for expenses, travel, lodging and meals to members of the General Court, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.' The petitioners contend that the preamble is defective for failure to state facts constituting the emergency. The respondents maintain that the preamble is adequate and that the General Court's judgment as to its constitutional sufficiency is conclusive upon this court.

The case presents constitutional questions of importance and difficulty. Our deliberations have resulted in a diversity of views among the six Justices participating in the decision. The Chief Justice, because of illness, was unable to be present at the arguments and has not taken part in the decision.

1. At the outset, we are met with the question whether there is judicial review of the adequacy of the preamble in c. 506 under art. 48. On this issue, the members of the court are divided.

Mr. Justice KIRK and Mr. Justice SPIEGEL are of opinion that the recitals in an emergency preamble are left by art. 48 wholly to the Legislature, and present no justiciable question. See Yont v. Secretary of the Commonwealth, 275 Mass. 365, 366, 176 N.E. 1; Davison v. Johonnot, 7 Met. 388, 395-396, 48 Mass. 388, quoted below, fn. 5.

Mr. Justice SPALDING, Mr. Justice WHITTEMORE, Mr. Justice REARDON, and the writer of this opinion hold that whether such a preamble complies with the requirements of art. 48 is a justiciable question and that it is our constitutional duty to pass upon that question, when and if properly raised in the course of litigation by one entitled to raise it. Horton v. Attorney Gen., 269 Mass. 503, 507, 169 N.E. 552. See Prescott v. Secretary of the Commonwealth, 299 Mass. 191, 196-197, 12 N.E.2d 462.

Although all the participating judges, except Mr. Justice WHITTEMORE, concur in the result, the reasons hereinafter set forth are those expressed by Mr. Justice SPALDING, Mr. Justice REARDON, and the writer of this opinion.

2. The vital question is whether the preable to c. 506 adequately sets 'forth the facts constituting the emergency.' In deciding this issue we, of course, must presume that the Legislature intended a statement that would comply with the requirements of art. 48, The Referendum, II. This legislative action is entitled to the same presumption of regularity and validity that is given to the substance of a statutes when they are attacked on constitutional grounds. Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695, 700, 184 N.E.2d 344, and cases cited.

(a) The Massachusetts constitutional provisions with respect to so called emergency preambles, and the related referendum, differ from those in effect in certain other States. One principal difference is that, in Massachusetts, the justification for legislative action making a statute immediately effective may rest upon general aspects of 'public convenience' as well as upon more serious situations affecting 'the public peace, health [or] safety.' ² The term 'emergency,' under the Massachusetts constitutional provision, thus has a somewhat artificial and unnatural meaning, for most members of the public probably would not regard the needs of mere 'public convenience' as giving rise to a true 'emergency.' See Prescott v. Secretary of the Commonwealth, 299 Mass. 191, 200, 12 N.E.2d 462, where this general subject is discussed. Cf. e. g. Maine Const. (1955), art. IV, part Third, §§ 16, 17; Ark.Const. Amend. No. 7, § 1.

In Massachusetts also, unlike the situation in some States, the adoption of an emergency preamble does not prevent the measure to which the preamble is attached from being subject to referendum at the next election. Cf. e. g. Morris v. Goss, 147 Maine, 89, 104, 110, 83 A.2d 556; Ohio Const. Art. II, §§ 1c, 1d; State ex rel. Schorr v. Kennedy, 132 Ohio St. 510, 511-512, 9 N.E.2d 278, 110 A.L.R. 1428. The principal consequences in Massachusetts of adopting a so called 'emergency' preamble are to make the measure effective upon its passage rather than ninety days thereafter, and to prevent the operation of the measure from being suspended until after the next biennial election. We must recognize, in considering our own Constitution, that the position taken by courts in some other States ³ in reviewing emergency preambles in part may have been induced by the more rigid constitutional definitions of 'emergency' there applicable and, to some extent, by the more significant practical consequences of the adoption of such a preamble.

(b) A determination that a statute should, for reasons of public convenience alone, take effect at once rather than after the lapse of ninety days is so obviously a matter of legislative policy that no court should disregard or question the determination unless, in the manner of its adoption or in substance, there has been plain violation of some constitutional mandate. The discretion involved in determining whether an immediate effective date is 'necessary for the immediate preservation of the public * * * convenience' is so broad that any judicial review is inevitably extremely limited. 'Public convenience' is a comprehensive term. It would be difficult for a court to say that the Legislature was plainly wrong in deciding to put a statute into effect at once, if reading the statute as a whole brings to mind any substantial basis for believing that the public convenience would be served by having the statute in effect during the ninety days immediately following its passage.

(c) There is no indication that the Constitutional Convention attached any special importance to the words 'setting forth the facts constituting the emergency.' Nothing in the debates (see fn. 2) suggests that these words were given any consideration whatsoever in the discussion of what is now art. 48. All that appears is that the words were in the most detailed original proposed for a very long amendment and were retained.

(d) In the absence of indication that special significance was attached by the Constitutional Convention to the provision for stating the facts, it is apparent that the provision must be construed with reference to the circumstance that 'public convenience' will justify the adoption of an emergency preamble. Slight grounds will warrant the Legislature in concluding that public convenience will be served by making the act effective at once. Accordingly, little is needed to satisfy the requirement for a statement of facts.

(e) This view was taken by the first Legislature which had to deal with such preambles. Article 48 of the Amendments became effective shortly after the 1917-1918 Convention. In 1919 the Legislature began to employ, in stating the facts constituting the so called emergency, a recital that...